The opinion
Smith, C. J.,
(after stating the facts). 1. It is a well understood rule of practice upon appeals, reasserted time and again by this Court, that error cannot be assigned and become the subject of review in an omission or neglect to give a specific instruction, even when proper in itself, unless asked, and thus called to the attention of the Judge in order that he may rule thereon. This is just to the Court and opposing counsel, and indispensable to a fair trial and to prevent surprise. Simpson v. Blount, 3 Dev., 34 ; Brown v. Morris, 4 D. & B., 429; State v. O’Neal, 7 Ired., 251 ; Arey v. Stephenson, 12 Ired., 34 ; Hice v. Woodard, Ibid., 293, and more recent cases.
2. Upon the findings of fact by the Judge, there was no such misconduct as in law to vitiate the verdict, and the setting it aside upon other ground was a matter of discretion, not reviewable here.
3. We find no ground for arresting judgment in the form *535 of the indictment, and no defects have been pointed out in the argument.
These being the only grounds contained in the -record upon which, in the appeal, we are required to review the judgment, it must be and is affirmed.
No error.